England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		27th February 2008

1. LADY JUSTICE HALLETT: The appellant, Joseph Gillooley, now aged 56 and a man of previous good character, was convicted on 6th January 2006 at the Crown Court at Manchester before His Honour Judge Ensor of 10 counts of indecent assault on a male under section 15(1) of the Sexual Offences Act 1956. On the same day he was sentenced to a total of 7 years' imprisonment. He appeals against conviction with leave.
2. The background to his convictions are as follows. The appellant was a friend of the complainant's family. When they were young, the complainant, "B", and his brother stayed the night occasionally at the appellant's house. B claimed that when he was 8 years old the appellant started showing him pictures of a sexual nature and began to touch him inappropriately.
3. Count 1 related to an incident said to have occurred the day after B's 8th birthday. B said he saw the appellant masturbating in his bedroom with the door open. He claimed that the appellant showed him his penis and said "Wait and see what I can do". He maintained that the appellant invited him to touch him, which he did. He thought it hurt the appellant because the appellant then gave out a yell before ejaculating into a tissue.
4. Count 2 related to an incident a couple of weeks later. The complainant was staying overnight at the appellant's house and went to bed. He awoke to find the appellant lying on top of him. He said his pyjama bottoms had been removed. He felt the appellant's erect penis between his legs and then a "horrible mess".
5. Counts 3 to 10 related to incidents in which, as the complainant got older, the sexual activity escalated. The appellant would regularly masturbate and perform oral sex upon B. B said that he was given favourable treatment. He was given gifts, sweets and fairground rides. Although at times they risked discovery nobody in fact found out what was happening.
6. The complainant, when he was 15, said he told the appellant that he did not wish to continue with the sexual behaviour and the appellant tried to make him feel guilty about ending their relationship. The complainant said the appellant was upset but he did not try to threaten B or persuade him keep quiet. B claimed that the abuse then came to an end, although there was one further occasion when during a party at his house the complainant awoke to find the appellant performing oral sex on him.
7. The complainant suggested that the effects of the abuse were psychological and long lasting and affected his studies. He wanted to get away from the appellant, so he left for college to try and obtain some qualifications. Eventually he joined the RAF and left the area for some 6 years.
8. He was questioned about why it took him a considerable time to make the complaint. He said he had no friends that he could tell about the abuse. He said he could not tell his brother because they did not have that kind of relationship, and he did not tell his parents or anyone else because he thought he would not be believed and did not wish to be ridiculed. He told his girlfriend about what happened but not until the early 1990s. Thereafter he told no-one else until 2004 when he told his mother. Soon after that, he reported the abuse to the police. He said he felt guilty about failing to complain for so long but decided he must to ensure that no-one else suffered at the hands of the appellant.
9. The complainant's mother was called to give evidence and she described the high regard in which she held the appellant. She described her son as having been shy and timid and less outgoing than his brother. Initially she thought nothing of the fact that her son wished to stay with the appellant. This began when B, was about 8 years old. She described how the appellant saw B on a regular basis, waiting for him on the steps of her house and taking him to school. She also described a change in B's behaviour. She said when he was about 9 or 10 he became distant and withdrawn and difficult to be close to. She said B continued visiting the appellant until he was 14 but then stopped and told the appellant not to visit him.
10. Without objection from trial counsel, prosecution counsel elicited from her that the complainant had made his complaint to her in 2004. She said the complainant told her that something had been bothering him for some time. Without going into any detail of the alleged abuse, she said he told her he had been abused, then broke down into tears and said he did not know what to do or how to tell her. The complainant himself did not describe this incident in his evidence.
11. Shortly after this conversation the appellant was arrested and interviewed. In interview he gave an account consistent with his account at trial. He denied all the allegations. He provided details of his working and living arrangements and maintained that if this type of activity had been going on, others would have discovered the fact. He also questioned why, if it had been going on, no complaint had been made. He insisted that his entire relationship with the complainant was perfectly normal. He accepted that he had shared a bed with the complainant, but said this was because his mother was suffering from Alzheimers and he was afraid that if the complainant got up in the night he might find his mother wandering around the house and be frightened. He accepted that he had told the police that he and the complainant slept head to toe, whereas in fact the truth was they slept side by side in a single bed.
12. He agreed that he had never known the complainant to lie as a young man and said that there was no history of any problems between them. He had no explanation, therefore, (albeit it was not for him to provide one) for the allegations being made other than the possibility that the complainant may have been interested in making money.
13. A number of the appellant's friends and members of his family were called to give evidence about the living arrangements and the close knit community in which they all lived. The complainant and his brother were said to be part of the extended Gillooley family and witnesses insisted they had never seen anything improper in the appellant's behaviour towards either the complainant or his brother. Everyone called on the appellant's behalf said that the complainant and the appellant appeared to get on well together.
14. The grounds of appeal are as follows. First, Mr Greene who appeared on behalf of the appellant before us but not at trial complains that evidence of the complainant's disclosure to his mother and former girlfriend about the alleged sexual abuse were wrongly admitted. He argued that the alleged offences occurred years before any complaint was made and what the appellant said to his mother and his girlfriend cannot, by any stretch of the imagination, be described as "recent complaint". The allegations were not made within a reasonable time and the complainant did not even mention in his evidence complaining to his mother. Both complaints failed to meet the criteria of recent complaint, under the old common law rules and under section 20 of the Criminal Justice Act 2003.
15. Further, Mr Greene submitted that even if he was wrong about the admission of the evidence, the summing-up was subject to criticism. The learned judge gave no direction on the evidence that the complainant gave that he had complained to his girlfriend. He did, however, give the following direction as to what the complainant said to his mother. He said this:

"[B] told his mother that the defendant had abused him. He did not go into detail, and shortly after that, he went to the police. Now what he said to his mother in December of 2004 is not evidence as to what actually happened between [B] and the defendant. His mother was not present and she did not see what happened, but it is evidence you are entitled to consider because it might help you to decide whether or not he has told you the truth, but you must understand it is not independent evidence of what happened between [B] and the defendant, and it cannot prove by itself that the complaint is true."

17 This passage must be considered in the context of a series of directions about which Mr Greene makes no criticism and which dealt fully and fairly with every aspect of the case, including the passage of time and the delay.

16. Mr Greene argues that the judge failed to give, as he should have done, a direction as to how the jury should approach the evidence that the complainant said he had told his girlfriend what had happened. He also argued that the judge in the passage above has wrongly given the jury what is, in essence, albeit not in entirely standard form, a Judicial Studies Board recommended direction on recent complaint. He argued that if this evidence was admitted as part of the narrative, as the prosecuting counsel Mr Brady suggested, then a recent complaint direction was not appropriate. It was wrong to direct the jury that the fact that the complainant had complained to his mother was evidence the jury were entitled to consider in deciding whether or not the complainant had told the truth. Mr Greene properly reminded the court that this was a prosecution case which depended almost entirely upon the word of one witness, the complainant. It was essential, therefore, he argued, that the summing-up was scrupulously fair and did not lead the jury to believe there was support for the complainant's account where none existed.
17. Mr Brady responded to the criticism of the judge by reminding the court the principles which apply to this case are not those of recent complaint under the common law but the principles in the Criminal Justice Act 2003. He pointed out that no application was made to admit this evidence under section 120 because the evidence was admitted under section 114 of the Criminal Justice Act. Defence counsel agreed to the admission in evidence. He wished to place some reliance upon the history of events. Accordingly, the fact of these two complaints was admissible under section 114. No application to the judge was necessary and no leave was required. We agree. Accordingly, it is not necessary for us to consider whether or not the criteria of section 120 had been met.
18. We have no doubt that it was perfectly proper for defence counsel, for tactical reasons, to seek to elicit the history of events. As Mr Brady observed, the history of the complaints was all part of the narrative and was evidence upon which both sides, to varying degrees placed some reliance. It would have been extremely difficult, in our view, to present the facts of this case to the jury, doing justice to both parties, without the jury being told the background of how and when the matter came to the attention of the police. This we note was very shortly after the complaint to the mother. Thus, we are entirely satisfied that this evidence was properly admitted and do not need to consider whether had Mr Greene persuaded us it was wrongly admitted there was any significant prejudice to the appellant, which would have been his next hurdle.
19. We turn, therefore, to the criticism of the summing-up. We see some force in Mr Greene's argument that it was unnecessary here to give the standard Judicial Studies Board direction on recent complaint. This was not a recent complaint case. However, as he himself observed, this was not the standard direction. The judge here properly gave the jury a direction on how they should approach the fact of the complaint to the mother, telling them that it did not provide independent support for the fact of abuse. As the judge rightly observed, the mother was not present and she did not see what happened. The evidence came from B himself and therefore was not in any way independent. Mr Greene accepted that had those directions not been given, he would have been highly critical of the judge.
20. Thus, the only question for this court is: do the words "but it is evidence you are entitled to consider because it might help you to decide whether or not he has told you the truth" undermine the safety of the conviction? In our judgment, plainly they do not. Firstly, technically it is arguable that those words were a proper direction, the defence having argued that the fact of the complaint to the mother at the time it was made might help them decide whether or not the complainant had told the truth. But in any event, those words, taken in the context of a very full and fair summing-up, cannot possibly be said, in our view, to undermine the safety of this conviction. The issue for the jury here was a simple one: did the jury believe the complainant? They did, and nothing has been put before us, despite Mr Greene's industry and eloquence, which has caused us to doubt the safety of the convictions. For those reasons, therefore, the appeal must be dismissed.